Marcelin v. Selsky

2 A.D.3d 931, 767 N.Y.S.2d 706, 2003 N.Y. App. Div. LEXIS 12916

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 2003
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III hearing, petitioner was found guilty of violating the prison disciplinary rules prohibiting inmates from harassment and making false statements and a penalty was imposed. Petitioner thereafter commenced this proceeding contending, inter alia, that various procedural errors deprived him of a fair hearing. We cannot agree. Petitioner’s assertion that he was never issued a copy of the rule book, “Standards of Inmate Behavior,” is without merit, and our review of the hearing transcript fails to support petitioner’s allegation that the Hearing Officer was biased against him or that his decision resulted from any alleged bias (see Matter of Green v Ricks, 304 AD2d 1010, 1011 [2003], lv denied 100 NY2d 509 [2003]). Petitioner’s remaining claims have been examined and found to be equally unpersuasive.

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Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

We note that petitioner has abandoned his substantial evidence argument on this appeal; nonetheless, the proceeding was properly transferred to this Court as the petition and answer raised the issue before Supreme Court (see Matter of Di Salvo v Selsky, 260 AD2d 874 [1999]).